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ARTICLE ID 48096

$________ - NEGLIGENCE OF DEFENDANT HEALTH CLUB WHICH PLACES SCALE IN AREA THAT IS PROTRUDING INTO WALKWAY - TRIP AND FALL - LUMBAR HERNIATION - NERVE DAMAGE RESULTING IN NERVE IMPINGEMENT CAUSING EPISODIC FOOT DROP.

Middlesex County

The plaintiff in her late 50s, who had been a member of the defendant health club for approximately six months, contended that the defendant negligently created a tripping hazard by placing a scale in such a manner that it protruded approximately six inches into a walkway. The plaintiff contended that as a result, she tripped and fell over the scale base when she turned and walked from a refrigerator after getting a bottle of water. The plaintiff maintained that she suffered a lumbar herniation and the compression of a nerve root that caused an episodic foot drop in which she would suddenly lose control of the muscles of the foot for a relatively brief period. The plaintiff maintained that the frequency of these episodes varied from several times per day to several times per month. The evidence disclosed that the plaintiff had generally visited the defendant’s gym 4-6 times per week during the approximate six-month period in which she was a member. The defendant, who indicated that placing the scale in this area was proper and enabled the staff to stand at an angle that would obstruct other members being able to see the scale when a member was getting weighed, further argued that the plaintiff should have seen the scale and was overwhelmingly comparatively negligent, especially since she visited the premises so often. The defendant’s biomechanical and civil engineer maintained that the premises were safe and that the presence of the scale was open and obvious. The plaintiff presented a human factors expert who maintained that the presence of the scale in this location constituted a distinct hazard and violated both industry standards and the BOCA code. The expert also contended that studies have shown that a hazard does not lose its dangerous characteristics because it had been present over a period of time. The expert related that people do not tend to look down as they are walking and that the presence of flyers and other items on the wall tend to distract. The plaintiff argued that the incident was "an accident waiting to happen." The plaintiff also argued that the defendant’s position that they acted properly in this manner in order to enable the employee weighing a member to obstruct the view of other members should clearly be rejected, arguing both that it was doubtful that this plan would be effective, and that such concerns did not justify creating the hazard. The plaintiff contended that she sustained a herniation at L5-S1 that was confirmed by MRI. The plaintiff further maintained that she suffered the compression of a nerve root. The plaintiff also contended that she suffered an episodic foot-drop entailing a weakness of the muscles of the foot. The plaintiff also related that the frequency of such episodes vary widely from several times per day to several times per month. The plaintiff maintained that although surgery was recommended, she is afraid of the risks and that following a second opinion, she underwent a series of injections that provided short-term relief only. The plaintiff contended that she may well require surgery in the future. The plaintiff contended that she was previously very athletically oriented, as evidenced by the fact that she visited the defendant gym 4-6 times per week, by her participation in a bowling league and by the evidence that she also frequently engaged in long walks. The plaintiff contended that although she has been able to return to her clerical job, she has been forced to give up her recreational activities, and generally, her life revolves around going to work and returning home, resting. The defendant denied that the plaintiff sustained the claimed herniation as a result of the incident. The defendant also maintained that any nerve injury resolved and denied that she sustained episodic foot drop. The plaintiff countered the treating physician confirmed the episodes and that an EMG was suggestive of the presence of the condition. The jury found the defendant ________% negligent and awarded $________.

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